Galo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JUAN CARLOS FRIAS DE PAULA and

YDELFONSO YORA MATOS,

Plaintiffs,

MEMORANDUM AND ORDER

-against- 25-CV-939 (OEM) (JAM)

BOLIVAR BUNAY GALO; LJB TRUCKING LLC;

and RBM TRADING LLC,

Defendants.

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ORELIA E. MERCHANT, United States District Judge:

Plaintiffs Juan Carlos Frias De Paula (“De Paula”) and Ydelfonso Lora Matos (“Matos”)

(collectively, “Plaintiffs”) brought this negligence action against Defendants Bolivar Bunay Galo

(“Galo”) and LJB TRUCKING LLC (“LJB”) in New York State Supreme Court on November 14,

2024. See generally Petition for Removal, Exhibit A, Dkt. 1-1 (the “Complaint” or “Compl.”).

After removing the case to federal court on December 20, 2024, see generally Petition for

Removal, Frias De Paula v. Galo, 24-cv-08703-BMC (E.D.N.Y. Dec. 20, 2024), Dkt. 1, and being

remanded back to state court on January 3, 2025, Order Remanding Case, Frias De Paula, 24-cv-

08703-BMC (E.D.N.Y. Jan. 3, 2025), Galo and LJB removed this case to federal court again on

February 19, 2025, see generally Petition for Removal, Dkt. 1 (the “Second Petition for Removal”

or “Second Pet.”). On June 13, 2025, Plaintiffs amended their Complaint to add nondiverse

Defendants RBM Trading LLC (“RBM”) and GCT of New York LP (“GCT”) to the case. See

generally Amended Complaint, Dkt. 17 (the “Amended Complaint” or “Am. Compl.”). Before

the Court is Plaintiffs’ motion to remand this matter to state court. See generally Plaintiffs’

Memorandum of Law in Support of Their Motion to Remand, Dkt. 35-2 (the “Motion” or “Mot.”).

For the following reasons, Plaintiffs’ Motion is granted.

BACKGROUND

A. The Accident

This case arises out of a motor vehicle accident (the “Accident”). See Compl. ¶¶ 5-18;

Am. Compl. ¶¶ 8-20. As alleged in the Complaint and clarified in the Amended Complaint,

Defendant Galo owned and was employed by Defendant LJB, which Defendant RBM hired to

transport a container from Newark, New Jersey, to Springfield Gardens, New York. Compl. ¶¶ 5-

9; Am. Compl. ¶¶ 8-12. On February 27, 2024, Galo was transporting the container in a 2004

Freightliner truck owned by LJB, Compl. ¶¶ 7-9; Am. Compl. ¶¶ 8-9, 18, and Plaintiff Frias De

Paula was driving a 2011 Honda motor vehicle in which Plaintiff Matos was a passenger, Compl.

¶¶ 12-13; Am. Compl. ¶¶ 15-16. At approximately 4:00 p.m., on “the Van Wyck

Expressway/Whitestone Expressway near Exit 13 (Northern Blvd),” in Queens County, New

York, Am. Compl. ¶¶ 17-20, Galo allegedly “struck the rear of the motor vehicle being operated

by [Frias De Paula],” id. ¶ 20, causing “serious personal injuries” to Plaintiffs, id. ¶ 21. See Compl.

¶¶ 15-19.

B. Procedural History

Plaintiffs sued Galo and LJB for negligence in the New York State Supreme Court in

Queens County on November 14, 2024. See generally id.

On December 20, 2024, Galo and LJB removed the case to federal court, where it was

assigned to Judge Brian M. Cogan. See generally Petition for Removal, Frias De Paula, 24-cv-

08703-BMC (E.D.N.Y. Dec. 20, 2024), Dkt. 1. On December 27, 2024, Judge Cogan ordered

Galo and LJB to show cause by January 3, 2025, why the action should not be remanded back to

state court due to “[t]hree patent defects with the notice of removal”: the failure to produce any

state court pleadings, the failure to establish sufficiently the amount in controversy, and the failure

to establish sufficiently the citizenship of LJB. Order to Show Cause, Frias De Paula, 24-cv-

08703-BMC (E.D.N.Y. Dec. 27, 2024). Galo and LJB filed two letters in response: one on January

2, 2025, see Letter, Frias De Paula, 24-cv-08703-BMC (E.D.N.Y. Jan. 2, 2025), Dkt. 3, and one

on January 3, 2025, Letter, Frias De Paula, 24-cv-08703-BMC (E.D.N.Y. Jan. 3, 2025), Dkt. 7.

On January 3, 2025, Judge Cogan remanded the case to state court because in their letters Galo

and LJB did not address the jurisdictional amount with requisite specificity. “The removal

window,” Judge Cogan wrote, “does not open until ‘the plaintiff services the defendant with a

paper that explicitly specifies the amount of monetary damages sought.’” Order Remanding Case,

Frias De Paula, 24-cv-08703-BMC (E.D.N.Y. Jan. 3, 2025) (quoting Moltner v. Starbucks Coffee

Co., 624 F.3d 34, 38 (2d Cir. 2010) (per curiam)).

On February 19, 2025, Galo and LJB removed the case to federal court a second time. See

generally Second Pet. This second case was assigned to the undersigned and Magistrate Judge

Joseph A. Marutollo. In their Second Petition for Removal, Galo and LJB stated that “new

information,” id. ¶ 2, became available to them on February 6, 2025, in a Response to Demand for

ad Damnum, alleging that “$5,000,000.00 is demanded on each cause of action for each plaintiff,”

id., Exhibit D at 1, Dkt. 1-4.

At an initial conference held on April 25, 2025, Magistrate Judge Marutollo permitted the

parties to file amended pleadings by May 2, 2025, which he subsequently extended to July 3, 2025.

See Minute Entry, dated April 25, 2025; Order, dated May 19, 2025; Order, dated June 13, 2025.

On June 13, 2025, Plaintiffs amended their Complaint to add RBM and GCT as defendants. See

generally Am. Compl. Specifically, Plaintiffs added RBM and GCT to the pre-existing negligence

claim against Galo and LJB and brought an additional claim of negligent entrustment solely against

RBM and GCT. Id. ¶¶ 21-29. Galo and LJB filed their answer to the Amended Complaint on July

21, 2025, see generally Defendants’ Answer to the Verified Amended Complaint, Dkt. 24, and

RBM filed its answer and crossclaims on August 21, 2025, see generally Answer and Cross-

Claims of Defendant RBM Trading LLC, Dkt. 31. GCT did not file a responsive pleading.

On August 7, 2025, Plaintiffs served their motion for remand, arguing that they had

asserted cognizable claims against RBM and GCT and that the Court lacked subject-matter

jurisdiction as a result. See Mot. at 3-5. According to Plaintiffs, the addition of RBM and GCT,

both citizens of New York, destroyed this Court’s diversity jurisdiction. Id. at 4.

Galo, LJB, and RBM (collectively, “Defendants”) filed their opposition to Plaintiffs’

Motion on August 22, 2025.1 See generally Affirmation in Opposition to Motion to Remand, Dkt.

33 (“Galo and LJB Opposition” or “Galo & LJB Opp’n”); Memorandum of Law in Opposition to

Plaintiffs’ Motion to Remand, Dkt. 34 (“RBM Opposition” or “RBM Opp’n). In their oppositions,

Defendants argue that Plaintiffs fraudulently joined RBM and GCT to defeat this Court’s diversity

jurisdiction and that the claims against them are baseless. See Galo & LJB Opp’n at 2-5; RBM

Opp’n at 2-4. RBM further contends that the “Plaintiffs’ claims are barred by the doctrine of res

judicata” because the “issues surrounding [Galo and LJB’s] liability were fully and fairly litigated

in the state court action before it was removed.” RBM Opp’n at 4.

On August 26, 2025, Plaintiffs filed their reply in further support of their motion to remand.

See Reply Affirmation, Dkt. 36 (the “Reply”). Plaintiffs assert that joinder of RBM and GCT is

proper and that their claims are grounded in law. Id. ¶¶ 1-16. They add that RBM’s res judicata

argument is “frivolous.” Id. ¶ 21.

The Court held oral argument on Plaintiff’s Motion on September 17, 2025, and directed

the parties to file supplemental briefing. On October 1, 2025, Defendants filed supplemental

opposition papers, see generally Supplemental Affirmation in Opposition to Motion for Remand,

1 GCT did not participate in the briefing or argument of this Motion.

Dkt. 42 (“Galo and LJB Supplemental Opposition” or “Galo & LJB Suppl. Opp’n”); Supplemental

Brief in Opposition to Plaintiffs’ Motion to Remand, Dkt. 43 (“RBM Supplemental Opposition”

or “RBM Suppl. Opp’n”), and on October 8, 2025, Plaintiffs filed a supplemental reply, see

generally Supplemental Reply Affirmation, Dkt. 45 (“Plaintiffs’ Supplemental Reply” or “Pls.’

Suppl. Reply”).

The parties additionally submitted a stipulation of dismissal as to GCT on October 2, 2025,

see Stipulation of Discontinuance as to Defendant GCT of New York LP, Dkt. 44, which the Court

so ordered on October 3, 2025.2

All discovery closed on January 5, 2026. See Order, dated August 27, 2025.

DISCUSSION

The parties’ briefing presents two main issues: (1) whether this Court possesses subject-

matter jurisdiction and (2) whether the doctrine of res judicata bars Plaintiffs’ claims.

A. The Court Lacks Subject-Matter Jurisdiction.

A defendant may remove an action to a federal court in “any civil action brought in a State

court of which the district courts of the United States have original jurisdiction.” Bounds v. Pine

Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010) (quoting 28 U.S.C. § 1441(a)).

Federal district courts have original jurisdiction in civil actions “where the matter in controversy

exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens

of different States.” 28 U.S.C. § 1332(a)(1). To remove a case based on diversity jurisdiction, a

defendant must show that all the requirements of diversity jurisdiction have been satisfied.

Bounds, 593 F.3d at 215 (citing 28 U.S.C. § 1446). Complete diversity is required. Id. (citing

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989)). Courts in this Circuit

2 Because GCT is no longer a party to this case, the Court does not address the claims Plaintiffs made against it.

“generally evaluate a defendant’s right to remove a case to federal court at the time the removal

notice is filed.” Vera v. Saks & Co., 335 F.3d 109, 116 n.2 (2d Cir. 2003).

In their Second Petition for Removal, Galo and LJB assert that this Court possesses subject-

matter jurisdiction over this matter. They claim that the amount in controversy is “more than

$75,000,” Second Pet. ¶ 10; id., Exhibit D at 1, Dkt. 1-4 (specifying $5,000,000.00 per Plaintiff),

and that Plaintiffs reside in New York, while Galo resides in New Jersey, Second Pet. ¶¶ 6-7, 9.

They state that LJB is incorporated and has a principal place of business in New Jersey and that

Galo is its sole member. Second Pet. ¶ 8; Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC,

692 F.3d 42, 49 (2d Cir. 2012) (A “limited liability company . . . takes the citizenship of each of

its members.”). Therefore, the Court finds that complete diversity existed at the time the Second

Petition for Removal was filed.

Plaintiffs do not dispute this conclusion but subsequently amended their Complaint to add

RBM as a defendant, both to the pre-existing negligence claim and to a new negligent entrustment

claim. Compare Compl., with Am. Compl. The Amended Complaint asserts that RBM is a citizen

of New York. Am. Compl. ¶ 6. Plaintiffs thus argue that the addition of RBM deprives this Court

of subject-matter jurisdiction. Mot. at 4-5; Reply ¶¶ 2-16; Pls.’ Suppl. Reply ¶¶ 2-6, 11-17.

In response, Defendants do not contest that RBM is a citizen of New York. See Letter from

RBM to the Court (Jan. 7, 2026), Dkt. 51 (confirming that RBM “has three members”: a citizen of

Guyana and two citizens of New York); Bayerische, 692 F.3d at 49. Rather, they assert that

Plaintiffs fraudulently joined RBM to this action to destroy this Court’s diversity jurisdiction. Galo

& LJB Opp’n at 2-5; Galo & LJB Suppl. Opp’n at 2-4; RBM Opp’n at 1-4; RBM Suppl. Opp’n at

2-4.

Post-removal joinder of additional defendants is governed by 28 U.S.C. § 1447(e), which

provides: “If after removal [a] plaintiff seeks to join additional defendants whose joinder would

destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the

action to the State court.” Federal courts interpret “the removal statute narrowly, resolving any

doubts against removability,” in keeping with Congress’s intent “to restrict federal court

jurisdiction, as well as the importance of preserving the independence of state governments.” Lupo

v. Hum. Affs. Int’l, Inc., 28 F.3d 269, 274 (2d Cir. 1994) (quoting Somlyo v. J. Lu-Rob Enters.,

Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991), superseded by rule on other grounds, FED. R. CIV. P.

5(d)(4), 83(a)(2), as recognized in, Commerzbank AG v. U.S. Bank, N.A., 100 F.4th 362, 377 (2d

Cir. 2024)). Whether to admit new parties is “within the sound discretion of the trial court.”

Briarpatch Ltd. v. Pate, 81 F. Supp. 2d 509, 515 (S.D.N.Y. 2000) (quoting Wyant v. Nat’l R.R.

Passenger Corp., 881 F. Supp. 919, 921 (S.D.N.Y. 1995)). “District courts in this circuit have

generally agreed that in exercising the discretion whether to admit new parties, ‘courts first

consider whether joinder would be appropriate under Rule 20 [of the Federal Rules of Civil

Procedure] and then proceed to weigh . . . principles of fundamental fairness.’” Id. (alteration in

original) (quoting Wyant, 881 F. Supp. at 921, 923).

First, the Court considers joinder under Federal Rule of Civil Procedure 20 (“Rule 20”).

In relevant part, Rule 20(a)(2) states that

[p]ersons . . . may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative

with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Here, the Court finds, and Defendants do not contest, that the joinder of RBM would be permissible

under Rule 20(a). As outlined above, Plaintiffs’ original Complaint did not name RBM as a

Defendant or state any cause of action against it. See Compl. There would therefore be no basis

for joinder under the original Complaint. See, e.g., Briarpatch, 81 F. Supp. 2d at 515. The

Amended Complaint, however, joins RBM as a defendant to the pre-existing cause of action of

negligence and to a new cause of action of negligent entrustment. See Am. Compl. ¶¶ 21-29. The

negligence and negligent entrustment claims arise out of the same accident and allege questions of

law or fact common to all Defendants; therefore, joinder would be appropriate under Rule 20. See,

e.g., Briarpatch, 81 F. Supp.2d at 515; Nocella v. Allstate Ins. Co., CV 18–1995 (ADS)(AYS),

2019 WL 2438745, at *4 (E.D.N.Y. Feb. 6, 2019).

Next, the Court considers principles of fundamental fairness. When evaluating

“fundamental fairness,” courts in this Circuit generally analyze four factors: “(1) any delay, and

the reasons for the delay, in seeking to amend; (2) any resulting prejudice to the defendant; (3) the

likelihood of multiple litigation; and (4) the plaintiffs’ motivation in moving to amend.”

Briarpatch, 81 F. Supp. 2d at 515 (quoting Wyant, 881 F. Supp. at 923); accord Mraz v. JPMorgan

Chase Bank, N.A., 17-CV-6380, 2018 WL 2075427, at *4 (E.D.N.Y. May 3, 2018); Nocella, 2019

WL 2438745, at *4; Naber v. First Am. Title Ins. Agency, Inc., 22-CV-6166-CJS-MJP, 2022 WL

16832644, at *6 (W.D.N.Y. Nov. 9, 2022). On the first factor, RBM concedes that “Plaintiffs did

not significantly delay in amending their complaint after removal.” RBM Opp’n at 2.3 RBM

similarly acknowledges on the third factor that “there is no likelihood of multiple litigations if

joinder is denied.” Id. at 3. On the second and fourth factors, however, RBM emphasizes the

impropriety of Plaintiffs’ motivation because “[t]he claim against RBM is legally impossible.” Id.;

see id. at 2-3. RBM characterizes the joinder as “tactical.” Id. at 2. In reply, Plaintiffs assert that

their motivation for joining RBM is proper. Pls.’ Reply ¶¶ 2-16.

3 The Court notes that LJB and Galo did not brief the issue of fundamental fairness.

As acknowledged in Briarpatch Ltd., L.P. v. Pate, the motivation factor “comports with

the more general rule animating fraudulent joinder,” 81 F. Supp. 2d at 515-16: that a plaintiff may

not undermine diversity jurisdiction by “improperly joining a non-diverse defendant with no

genuine connection to the matter,” Brown v. Eli Lilly & Co., 654 F.3d 347, 356 (2d Cir. 2011);

see, e.g., Aparicio v. Uber Techs., Inc., 22-CV-4244-OEM-SJB, 2023 WL 5287065, at *9

(E.D.N.Y. Aug. 16, 2023) (discussing the relationship between 28 U.S.C. § 1447(e) and the

doctrine of fraudulent joinder). Under the doctrine of fraudulent joinder,

the defendant must demonstrate, by clear and convincing evidence, either that there

has been outright fraud committed in the plaintiff’s pleadings, or that there is no

possibility, based on the pleadings, that a plaintiff can state a cause of action against

the non-diverse defendant in state court. The defendant seeking removal bears a

heavy burden of proving fraudulent joinder, and all factual and legal issues must be

resolved in favor of the plaintiff.

Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998); see Brown, 654 F.3d at 356.

Here, Defendants do not claim that there has been outright fraud; rather, they argue that

there is no possibility that Plaintiffs can state a cause of action against RBM in state court. See

Galo & LJB Opp’n at 4-5; Galo & LJB Suppl. Opp’n at 2-4; RBM Opp’n at 3; RBM Suppl. Opp’n

at 2-4. This argument is governed by state law. See, e.g., MBIA Ins. Corp. v. Royal Bank of Can.,

706 F. Supp. 2d 380, 394 (S.D.N.Y. 2009). “Any possibility of recovery, even if slim, militates

against a finding of fraudulent joinder; only where there is ‘no possibility’ of recovery is such a

finding warranted.” Farnum v. Crown Equip. Corp., 20-CV-10843 (RA), 2021 WL 2581266, at

*3 (S.D.N.Y. June 23, 2021) (quoting Nemazee v. Premier, Inc., 232 F. Supp. 2d. 172, 178

(S.D.N.Y. 2002)). Importantly, the applicable standard “is not whether the claim would likely

survive a motion to dismiss.” Tamm v. Cincinnati Ins. Co., 18-CV-11415 (RA) (BCM), 2019 WL

5722131, at *6 (S.D.N.Y. Aug. 15, 2019) (quoting Segal v. Firtash, 13–cv–7818 (RJS), 2014 WL

4470426, at *3 (S.D.N.Y. Sep. 9, 2014)), adopting report & recommendation, 18-CV-11415 (RA),

2020 WL 1144713 (S.D.N.Y. Mar. 9, 2020), aff’d, 858 F. App’x 412 (2d Cir. 2021). Instead, “[i]t

is enough to conclude ‘that New York’s liberal pleading rules leave open the possibility that the

state court would deem the Complaint to state a claim.’” Id. (quoting Lis v. Lancaster, 19-cv-1414

(JSR), 2019 WL 2117644, at *2 (S.D.N.Y. Apr. 25, 2019)); see id. (“This distinction – between

the motion to dismiss standard and the ‘less searching’ standard used on a remand motion – is

important to ensure that the federal courts are not drawn into resolving the merits of state-law

disputes in order to determine whether they have jurisdiction to do so. A defendant ‘may not use

removal proceedings as an occasion to adjudicate the substantive issues of a case.’” (quoting Stan

Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F. Supp. 2d 177, 182 (S.D.N.Y. 2003))).

As outlined above, the Complaint solely alleged a single cause of action against LJB and

Galo: negligence. See Compl. ¶¶ 19-27. The Amended Complaint subsequently joined RBM and

GCT as Defendants to the negligence claim and additionally brought a negligent entrustment claim

solely against RBM and GCT, not Galo and LJB. Am. Compl. ¶¶ 21-29. Although the Court may

look beyond the pleadings to resolve disputed jurisdictional factual issues, see Flores v. S. Peru

Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003); MBIA, 706 F. Supp. 2d at 395 (collecting

cases), the Court’s fraudulent joinder inquiry remains focused on the pleadings themselves, as they

existed at the time of removal, see Pampillonia, 138 F.3d at 462; Benihana of Tokyo, LLC v.

Angelo, Gordon & Co., L.P., 712 F. App’x 85, 86 (2d Cir. 2018). In a case like this, where

Plaintiffs filed an Amended Complaint post-removal, the Court’s analysis generally must not

consider any new causes of action not present in the original Complaint. See MBIA, 706 F. Supp.

2d at 395 (“In fraudulent joinder cases, ‘[p]ost-removal filings may not be considered . . . when or

to the extent that they present new causes of action or theories not raised in the controlling petition

filed in state court.’” (alteration in original) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694,

700 (5th Cir. 1999)); Mraz, 2018 WL 2075427, at *4; Tamm, 2019 WL 5722131, at *7. Instead,

the Amended Complaint may be relied upon only to the extent that it provides “expanded factual

allegations” on the cause of action already present in the original Complaint: negligence. Tamm,

2019 WL 5722131, at *7; see MBIA, 706 F. Supp. 2d at 396; Segal, 2014 WL 4470426, at *4.

Having focused solely on the tort of negligent entrustment in their briefing, Defendants

have not met their “heavy burden” by “clear and convincing evidence.” Pampillonia, 138 F.3d at

461. Even if they did address the negligence claim against RBM, however, such claim is not

legally impossible. To plead a claim of negligence under New York law, a plaintiff must allege

“(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately

resulting therefrom.” Shepard v. Power, 195 N.Y.S.3d 94, 97 (2d Dep’t 2023) (quoting Ferreira

v. City of Binghamton, 194 N.E.3d 239, 245 (N.Y. 2022)). “Ordinarily, a principal is not liable

for the acts of independent contractors,” Chainani ex rel. Chainani v. Bd. of Educ., 663 N.E.2d

283, 287 (N.Y. 1995), however, there are “three basic categories” of exceptions: “negligence of

the employer in selecting, instructing or supervising the contractor; employment for work that is

especially or ‘inherently’ dangerous; and, finally, instances in which the employer is under a

specific nondelegable duty,” Helton v. Avrio Grp. Surveillance Sols., 5 F. Supp. 3d 386, 404

(W.D.N.Y. 2014) (quoting Kleeman v. Rhinegold, 614 N.E.2d 712, 715 (N.Y. 1993)). New York

has “liberal pleading rules,” which are broader than federal pleading rules and “require that a

plaintiff need only provide ‘at least basic information concerning the nature of a plaintiff’s claim

and the relief sought.’” MBIA, 706 F. Supp. 2d at 394 (quoting Parker v. Mack, 460 N.E.2d 1316,

1317 (N.Y. 1984)); see also Schlackman v. Robin S. Weingast & Assocs., Inc., 795 N.Y.S.2d 707,

708 (2d Dep’t 2005) (“A pleading attacked for insufficiency must be accorded a liberal

construction, and ‘if it states, in some recognizable form, any cause of action known to our law,’

it cannot be dismissed.” (quoting Clevenger v. Baker Voorhis & Co, 168 N.E.2d 643, 644 (N.Y.

1960))).

In their Complaint, Plaintiffs allege that, while operating a truck owned by LJB and while

working for LJB, Galo rear-ended a car driven by Frias De Paula and in which Matos was a

passenger on February 27, 2024. Compl. ¶¶ 7-9, 12-18. In their Amended Complaint, Plaintiffs

clarify that, “[o]n or prior to” that date, RBM “hired [LJB] to transport a container from Newark,

NJ to Springfield Gardens, Queens.” Am. Compl. ¶ 12. Plaintiffs contend that while transporting

that container, Galo allegedly struck Plaintiffs. Id. ¶¶ 8-20. In their cause of action for negligence,

Plaintiffs further assert that Defendants “were negligent, careless and reckless in the ownership,

operation, management, maintenance, supervision, use and control of the aforesaid vehicle,”

Compl. ¶ 21, and that this “carelessness, recklessness and negligence” caused the Accident, id.

¶ 20; Am. Compl. ¶ 21. As a result, Plaintiffs sustained “serious injury.” Am. Compl. ¶¶ 22-23;

see Compl. ¶¶ 19-20, 22. Plaintiffs seek damages “in the amount of $5,000,000 each.” Am.

Compl. ¶ 25.

Based on these allegations, a finding of legal impossibility is not warranted. Although

Defendants argue that RMB hired LJB and Galo as an independent contractor and did not own or

control the truck at issue, see RMB Suppl. Opp’n at 2-3; Galo & LJB Opp’n at 4, there remains

ambiguity as to the exact nature of RMB and LJB’s relationship in the pleadings themselves, as

well as the applicability of possible exceptions recognized by New York law. The Court must

resolve these ambiguities in Plaintiffs’ favor.4 Pampillonia, 138 F.3d at 461; see, e.g., Campbell

4 Even if the Court were to look beyond the pleadings, the Court observes that there remains ambiguity in the materials

supplied by the parties. To establish that Galo was an independent contractor, Defendants focus on a single-page bill

of lading, which counsel subsequently clarified is a routing slip. See RBM Suppl. Opp’n, Exhibit B, Dkt. 43; Galo &

LJB Opp’n at 4-5; RBM Suppl. Opp’n at 4; Pls.’ Reply at 1-2. Ostensibly generated by RBM, this routing slip lists

RBM as the recipient of the container transported by LJB and Galo. See RBM Suppl. Opp’n, Exhibit B, Dkt. 43; Galo

& LJB Opp’n at 4-5; RBM Suppl. Opp’n at 4; Pls.’ Reply at 1-2. Defendants additionally point to testimony from

Galo, both in the form of a deposition transcript and an affidavit, which assert that he “was not an employee or agent

v. Uber Techs. Inc., 22-CV-1247 (DG)(MMH), 2023 WL 2662947, at *4 (E.D.N.Y. Mar. 28, 2023)

(remanding an automobile accident negligence action where the defendants did not carry their

“heavy” fraudulent joinder burden and observing that “the mere likelihood that a court would

dismiss the case under these circumstances . . . is insufficient to pass the clear and convincing bar

under Second Circuit precedent” (quoting Jerido v. Uber Techs., Inc., 22 Civ. 2217 (KPF), 2022

WL 17986179, at *7 (S.D.N.Y. Dec. 29, 2022)).

Accordingly, 28 U.S.C. § 1447(e) requires remanding this matter to state court.

B. The Court Declines to Rule on RBM’s Res Judicata Argument.

Because the Court concludes that it lacks subject-matter jurisdiction over this case, the

Court does not address RBM’s res judicata argument. Moreover, this Motion’s “‘jurisdictional

inquiry is preliminary to any decision on the merits’ and is not meant to serve as a back door for

getting a defendant’s dispositive motions heard in a preferred federal forum.” Rose v. Horan, 17-

CV-6408 (MKB), 2018 WL 4344954, at *4 (E.D.N.Y. Sep. 11, 2018) (quoting Saveria JFK, Inc.

v. Flughafen Wien, AG, 15-CV-6195 (RRM), 2016 WL 11263673, at *4 (E.D.N.Y. May 3, 2016),

report & recommendation adopted, 15-CV-6195 (RRM)(RLM), 2017 WL 1194656 (E.D.N.Y.

Mar. 30, 2017)).

of” RBM on the date of the Accident. Galo & LJB Opp’n, Exhibit A ¶ 5; see RBM Suppl. Opp’n at 4; RBM Suppl.

Opp’n, Exhibit A, Dkt. 43. The Court has reviewed this testimony and routing slip and notes that, under New York

law, whether someone is classified as an independent contractor depends on a variety of factors. Bynog v. Cipriani

Grp. Inc., 802 N.E.2d 1090, 1093 (N.Y. 2003). The Court cannot, on the basis of the materials before it, conclude

that these factors have been met such that there is “no possibility” under New York law for Plaintiffs to state a cause

of action.

CONCLUSION

For the foregoing reasons, the Court grants Plaintiff’s Motion and remands this matter to

the Supreme Court of the State of New York, Queens County. The Court respectfully directs the

Clerk of Court to close this case.

SO ORDERED.

/s/

ORELIA E. MERCHANT

United States District Judge

January 29, 2026

Brooklyn, New York